The scope of local authorities' duties in historic abuse claims - SKX v Manchester City Council  EWHC 782 (QB)
UK & Europe
Insurance & Reinsurance
The Scottish courts have given their first detailed consideration of the ‘fair hearing’ defence provided in the Limitation (Childhood Abuse) (Scotland) Act 2017
In B and C v Sailors' Society  CSOH 62 the Scottish courts have given their first detailed consideration of the "fair hearing" defence provided in the Limitation (Childhood Abuse) (Scotland) Act 2017. The two cases related to physical and sexual abuse and had been valued at a total of £2.2m. The court found that a fair hearing was impossible due to the death of the abusers and both cases were dismissed.
Clyde & Co acted for the defender.
B and C are former residents of a children's home in Scotland. They sought damages for abuse in the 1960s and 1970s. Both cases related to allegations of physical and sexual abuse. In both cases the abusers were dead. They had died before the allegations had been made. There was an almost total lack of documentation and witnesses.
The cases proceeded to a preliminary trial on the issue of limitation. Evidence was led from both parties by way of affidavits. The defender's affidavits set out the detailed investigations carried out by the defenders and their lawyers over the course of 20 years.
Under the Scottish limitation regime there is no longer a limitation period for cases of childhood abuse. There are two statutory defences available to the defender:
The onus is on the defender to satisfy the court that either of the conditions is met. Prior to these two cases there had been limited judicial consideration of the new provisions. This case represents the most detailed analysis of the provisions to date.
The court held that a fair hearing was not possible in either case. As a fair hearing was not possible, it followed that the court could not say that other factors would outweigh the defenders' interests for substantial prejudice.
The key factor was that the abusers were all dead. They had been dead for a long period of time. They had died before the allegations were put to them and thus the defender had had no ability to obtain the abusers' response. The court held:
"It is not good enough to say, ab ante, that a denial would make no difference. To do so leaves out of account information that the individual may be able to provide about particular aspects of the pursuer’s case, which may cast doubt on the truthfulness or reliability of all or part of the allegations. It also leaves out of account the difficulty a defender faces if it has no proper basis in the evidence available to it positively to advance a defence that the abuse never happened, or cross-examine the pursuer on that basis."
This decision brings welcome clarity on the new provisions. While each case turns on its own facts, the decision clarifies the fair hearing defence. Where the abuser is dead a fair hearing is not likely to be possible. The exceptions to that may be where the allegations have been put to the abuser previously and thus the defender has some evidence with which to challenge – or otherwise – the claimant's allegations.
The court also provided comment on some of the other lines of argument that had been put forward. While not determinative in these cases they will be relevant to other cases:
Practitioners on both sides will welcome these comments to assist them in dealing with outstanding cases. While this judgment has provided some clarity, one matter that is absent is detailed analysis of the substantial prejudice exception. While understandable given the decision on fair hearing, we await further judicial guidance on what is meant by substantial prejudice and how the court will carry out the balancing exercise.